On Speaker Boehner and “manning up”

posted at 10:41 am on July 7, 2014 by Jazz Shaw

Whenever a new Republican idea is rolled out you can be sure that somebody will be along presently on some cable news show or another to label it a stunt. This has become so predictable that it’s probably embedded in whatever machine they use to set up the teleprompters at most of the television news outlets, but the quotes generally come from Democrats. We saw a twist on this effect, however, after Speaker of the House John Boehner recently published an editorial on why he plans to sue the President. Rather than coming from the hallowed halls of MSNBC’s evening lineup, the “stunt” description came from Red State and the virtual pen of none other than Erick Erickson.

John Boehner and the House Republicans may lack the testicular fortitude to fight President Obama, but I would kindly ask that he save the taxpayers further money on a political stunt

Boehner and the House Republicans want to sue the President of the United States. Instead, they should man up.

227 years ago, when the founders of the nation set about drafting the constitution, they gave the House of Representatives the exclusive power to initiate revenue bills and impeach the Executive. That the House would sue the President over his use of executive power is an indication that its leadership no more values their own powers under constitution than the President they sue…

John Boehner having to run home and cry to mama, i.e. let the courts act as the parent in the squabble, is chiefly a failure of House Republicans to use their “most complete and effectual weapon” against the Senate and President.

The reference to the most complete and effectual weapon above comes from Federalist 58, which Erickson quotes in his column, and refers to the influential power of the purse which congress wields. Of course, Erikson’s introductory paragraph refers to, the power to initiate revenue bills and impeach the Executive, but the rest of the piece speaks chiefly to the ability to control funding and the raising of revenue, so that seems to be the focus here.

I agree that the House hasn’t leveraged that power to much effect in some of the more controversial actions Barack Obama has pushed for. One of these which Erick highlights is the blank check for raising the debt ceiling and the abandonment of both Ted Cruz and Mike Lee in the face of the government shutdown. But while these are important issues, it doesn’t sound like these are the complaints which John Boehner is highlighting in the potential lawsuit. While the actual specifics of the pending lawsuit are not yet known, reading the Speaker’s editorial linked above would suggest that he’s talking about executive actions and selective enforcement – or lack thereof – of laws rather than the final resolution of budget battles which did pass in Congress for better or worse.

But too often over the past five years, the President has circumvented the American people and their elected representatives through executive action, changing and creating his own laws, and excusing himself from enforcing statutes he is sworn to uphold — at times even boasting about his willingness to do it, as if daring the American people to stop him.

There is much to complain about when it comes to the way that the President has used the bully pulpit in budget negotiations, but let’s face it… it’s an effective tool which presidents of each party regularly employ. The real question which Boehner seems to be raising revolves around the constant re-writing of laws, specifically ObamaCare, and the wielding of Eric Holder as an ad hoc legislative hammer to determine which properly passed laws will or will not be enforced. And that may, indeed, be worth “running home and crying to the courts” for a closer look. When Erickson says that the House GOP should “man up” to fight the President, in the case of executive overreach, this may be the best – if not only – tool in the bag.

It would be different if Boehner had put the least bit of effort into fighting Obama before this. No one trusts Boehner and no one thinks his intentions are good. It’s interesting how this came out of nowhere immediately after the Establishment nuked the base from the left in Mississippi. Nothing Boehner has done has shown that this isn’t just a stunt. I’ll happily accept being wrong but I doubt that I am.

Not only is this a political stunt, but it also has the effect of further empowering the judicial branch to be the arbiter of pretty much everything. The judicial branch already has far more power than they were intended to have. In fact, I would argue that the power grabs of the judiciary have been far more extensive, and far more detrimental, than the power grabs of the executive branch.

Erickson is correct. The House should either use the powers delegated to it by the Constitution to keep the executive branch in check, or it should accept the executive branch’s actions and shut up. Going to the courts is not a constitutionally acceptable option.

Correct me if I’m wrong, but is your complaint on Erick Erickson’s column is on tactics? I’m still mulling the use of the courts. The power Erick is supporting is Bohner’s to use, and an integral part of the constitution. In fact, the power of the purse/impeachment was highlighted in the Federalist papers. The use of the courts is a slippery 2 way sword, which may aid us. However, President George Bush was counting on the courts in saving us from that piece of dreck, McCain/Feingold incumbents reelection act, and the courts were going to save us from Obama’s ACA.

The post misses Erickson’s point. There is a difference between stopping the President and having someone else tell everybody he’s wrong. No, a lawsuit by the legislative branch against the executive branch is not the “best” and certainly not the “only” remedy available to House Republicans.

Besides, where is this infamous lawsuit? Let’s see it. And let’s see the application for an injunction that better be filed with it. Has anyone noticed that America is “transforming” while Boehner issues press releases. He has about as much credibility as that other guy, Obama.

But, hey, pick a tool, use a tool. Use all the tools. But, in the wielding of them, let’s see Boehner take the (golf) glove off and get his hands dirty. Maybe even muss his hair. Then we might take him seriously.

While I agree with the idea for the lawsuit, ultimately this takes responsibility out of Boehner’s hands and puts it into the judiciary’s, which is what Boehner wants.

However, I’m not impressed with how Boehner and the Establishment GOP have used their “power of the purse” authority. All I see is “this is not the hill to die on” everytime something budgetary comes into play.

Not only is this a political stunt, but it also has the effect of further empowering the judicial branch to be the arbiter of pretty much everything.

Bingo.

The judicial branch already has far more power than they were intended to have. In fact, I would argue that the power grabs of the judiciary have been far more extensive, and far more detrimental, than the power grabs of the executive branch.

Shump on July 7, 2014 at 10:58 AM

Bingo, again. And it should not be forgotten that we have a SCOTASS with a sitting wise Latina who was nominated based ont he anti-Western notion that empathy is a legitimate main criterion for a judge or judicial decision – in direct opposition to over three millenia of history of Western jurisprudence – and that that same empathetic, wise Latina feels that “the court of appeals is where policy is made”. But the cowards in the Senate Vichy GOP had no problem letting that anti-American idiot out of committee and flying right onto the SCOTASS.

This is just for show. He knows it won’t go anywhere but it makes it look as if he’s doing something.

crankyoldlady on July 7, 2014 at 11:18 AM

Absolutely spot on, crankyoldlady.

Everyone must have noticed Boehner never spells out what exactly he is suing Obama for. He just blathers on in generalities but never tells you exactly how/where Obama exceeded his authority.The president’s powers are broad.

I wonder how many of the people snarking at Boehner over this actually thought a lawsuit over Obama’s illegal “recess appointments would work. I sure remember a lot of skepticism about that and demands that Congress “do somethng” about these appointments when they happened, including some demanding impeachment at that time, and others demanding that Congress defund the NLRB.

I think a 9-0 Supreme Court smackdown will have a bigger impact on future Presidential appointments and other actions stepping on Congress than a food-fight over funding of the NLRB would have.

“Yet once again, Boehner has failed to outline a specific example of Obama breaking the law or violating the Constitution… Given the political energy this lawsuit has given the White House and even Democrats on the fundraising front, we wouldn’t be shocked if this gambit ends up dying an early political death.”

Who says one precludes the other? Hit him with everything you have at your disposal: lawsuits, funding cuts, hearings, select committees, the works. If the political tide rises high enough, impeachment. Which, as a number of experts have explained, is a political proceeding, not a legal proceeding

I think the Court will be unwilling to carry the Congress’s water for them. They have the power of the purse and the power to impeach; if they don’t want to use them then that’s between them and their constituents, but they are certainly adequate to the job of reining in a president.

What’s with all this ‘going to sue’, anyway? Boehner’s going to sue, Perry’s going to sue… funny thing, it’s a couple of weeks now and no suits.

David Rivkin and Elizabeth Price Foley have fully explained themselves on multiple occasions. Erickson fails to even mention them or their legal analysis. They have done the research and developed the cause of action. Erickson has not. Therefore, I consider Erick Erickson nothing more than a gadfly, rather than a serious lawyer and commentator.

Thank you for that link. I’ve never seen that before. Having now seen it, I have to ask why in the world is Jazz Shaw writing here? There’s not a commenter here who was paying attention and reading on his background who didn’t know what a scam, scoundrel and radical Obama was.

Yet, moving ahead with articles of impeachment without strong public support for the president’s removal would not just guarantee the defeat of impeachment in the Senate. It would be spun as a public endorsement of presidential lawlessness. Ironically, it would guarantee more abuses of power.

Impeachment cases have to be built. Consequently, Faithless Execution tries to show how you would build one against President Obama. I plead seven articles of impeachment, in the manner of a prosecutor structuring an indictment. The articles include the [1] president’s willful refusal to execute the laws faithfully; [2] his usurpation of Congress’s legislative authority and other constitutional powers; [3] his derelictions of duty as commander-in-chief; [4] his fraud on the American people in such debacles as Obamacare, the Benghazi massacre, and the Solyndra farce; [5] the failure to enforce the immigration laws; [6] the Justice Department’s shocking Fast & Furious scandal and its politicization of law-enforcement; and [7] the administration’s willful undermining of our constitutional rights — from the IRS’s targeting of conservatives, to the elevation of sharia blasphemy standards over free speech, to Obamacare’s denial of religious liberty.

Page 3, my emphasis in bold:

There are really only three constitutional ways to stop presidential lawlessness.

The first is the ballot box. But this president will face no more elections. More significantly, the Framers worried that presidents who were inclined to abuse their powers would be most likely to abuse them in order to get reelected — like by pretending a terrorist attack that killed four American officials was caused by a video, rather than a broad failure of policy; or by using the IRS to prevent a president’s political opposition from organizing; or by cooking the VA’s books while our ailing veterans were left to die.

The second check on presidential lawlessness is the power of the purse. The Constitution empowers Congress to deprive the administration of funds. That makes it much harder for the administration to abuse its powers. As Faithless Execution argues, however, just as the president has violated his constitutional obligation to execute the laws faithfully, so, too, has Congress ignored its constitutional duty to guard against presidential lawlessness.

So as the police rob John Boehner’s House, just like they’re robbing every house in the neighborhood, what does he do? Does he grab his gun in self-defense? Does he lock the ammo vault? Does he start yanking the badges of the lawless beat cops and warn police headquarters that the commissioner could be out of a job, too, if things don’t change?

No. Boehner instead decides to call his neighbor, the referee at the town gym. The whole community respects the ref. When we come to his court, he makes all the calls and, win or lose, the players know the game was fair and square. But the ref cannot force the police to follow the rules. And he doesn’t have a gun, just a whistle.

This, in a nutshell, is the theatrical exercise in futility that is House Speaker Boehner’s proposed lawsuit against our rampantly lawless president. Boehner and the Congress hold the tools that could end, or at least dramatically reduce, the administration’s onslaught. Instead, the speaker prefers to bring a whistle to a gunfight. Paralyzed by fear of catcalls from Obama’s slavish media, Boehner eschews the use of his own armaments in favor of turning to the courts — apparently, in hope that a judge will pronounce with stentorian flourish that which is already abundantly obvious to all with eyes to see: The president of the United States is in gross violation of his solemn oath to execute the laws faithfully, usurping congressional power in a systematic assault on the separation of powers that safeguards our liberties.

As I’ve catalogued in Faithless Execution, there is nothing ambiguous about the vast run of President Obama’s lawlessness.…

More important, as a response to executive lawlessness, a lawsuit is a non sequitur. When a president is running roughshod over the law, it is not the law itself that needs vindication — it is the faithful execution of the law….

The problem we have at the moment is not a lack of certainty about what the law is; the problem is the executive’s refusal to execute the law faithfully. The federal courts are impotent to address that — as several judges who have ruled against the Obama administration over the last six years have learned. Courts have no capacity to enforce their judgments. Law enforcement is a plenary executive power, and thus any court judgment against Obama would have to be enforced by . . . Obama. That is not going to happen.

…Congress has its own superior constitutional weapons for reining the president in: the power to deny funding that the administration needs and the power to impeach wayward executive officials.

McCarthy’s conclusion:

Moreover, as I’ve argued in Faithless Execution, the House should not impeach President Obama unless and until the public supports his removal. The goal should be to create a political climate in which executive lawlessness is deeply discouraged; that could be accomplished if some defunding were accompanied by the impeachment of obnoxious subordinate officials who execute the administration’s lawless policies.

It cannot be accomplished by a lawsuit that simply reinforces the president’s assessment that his opposition is unserious.

The “power of the purse” doesn’t mean much when Democrats control the Senate and refuse to pass a budget. The power then comes down to either passing a continuing resolution or shutting down the government.

Erickson thought the shutdown a good idea, too. Idiot.

Republicans ALWAYS get blamed for shutdowns, and even when the public is on our side on the issues, like ObamaCare, they oppose shutting down the government as a means of forcing our will.

Alas dear electorate– The fault is not in our legislator stars. It is in ourselves.

All who stayed home rather than vote for a candidate that they felt was not conservative enough when he faced a candidate who was far less qualified gave license to the very actions they complain about. Boehner can only work with what the electorate has given him and that is not the Senate or the Presidency. This lawsuit that some find inadequate is one of only a small number of arrows available to him in a rather barren quiver.

The inaction of the spineless, gutless, self-serving Repub-o-cRATs – like boehner and mcconnell – has caused me to renounce all associations with the “Republican” party. I now stand as a CONSERVATIVE, who will support, contribute to and vote for ONLY true conservatives. To hell with the rest.

Boehner is nothing more than a political opportunist. He doesn’t have the integrity or the strength of character to represent conservatives in any way. Sadly, he probably actually believes that he does! He is just pathetic!